The Federal Bureau of Investigation’s refusal to discuss even the broad strokes of some of its secret investigative methods, such as implanting malware and tracking cellphones with Stingrays, is backfiring – if the goal is to actually enforce the law.

In the most recent example, the FBI may be forced to drop its case against a Washington State school administrator charged with possessing child porn because it doesn’t want to tell the court or the defense how it got its evidence – even in the judge’s chambers.

The FBI reportedly used a bug in an older version of the free anonymity software Tor to insert malware on the computers of people who accessed a child-porn website it had seized. The malware gave agents the ability to see visitors’ real internet addresses and track them down.

Defense lawyers for Jay Michaud of Vancouver, Wash., argued they had the right to review the malware in order to pursue their argument that the government compromised the security of Michaud’s computer, leading to the illicit material ending up there unintentionally.

“The consequences are straightforward: the prosecution must now choose between complying with the court’s discovery order and dismissing the case,” Michaud’s defense attorneys wrote in a brief filed last week.

The FBI’s lawyers took what they described as the “unusual step” in late March of asking the judge to reconsider his order, repeating earlier arguments that revealing the full details of the technique would be “harmful to the public interest.” The information might damage future investigations by allowing potential targets to learn about the FBI’s tactics, its attorneys argued, and might “discourage cooperation from third parties and other governmental agencies who rely on these techniques in critical situations.” The bureau sometimes pays third parties for exploitable security flaws, which lose their market value when they are made public and get fixed.

FBI officials declined to comment to The Intercept about their legal strategy.

In their frequent public arguments against unbreakable encryption, FBI officials have been arguing that public safety takes precedence over personal privacy.

But if this case gets dropped, the “defendant walks because the government has decided that its secrecy trumps someone else’s becoming a victim of Crime Everyone Hates,” Scott Greenfield, a criminal defense lawyer, wrote in his blog Simple Justice.

“The FBI would rather let a criminal go free than actually follow a court order designed to ensure a fair defense” even though revealing the bug “would almost certainly not help the defense,” tweeted Nicholas Weaver, a computer security researcher at the International Computer Science Institute in Berkeley, California.

And this isn’t the first time FBI has expressed “its preference for secrecy over public safety,” tweeted Amie Stepanovich, U.S. policy manager for digital rights group Access Now.

In Baltimore, 2,000 convictions may be overturned because of evidence that the police and the FBI purposefully withheld and then lied about the capabilities of the technology.

And last week, a city judge in Baltimore reluctantly tossed out key murder evidence gathered with the use of a cell site simulator because the police, who had been concealing use of the device as part of a nondisclosure agreement with the FBI, used it without getting a search warrant. She called it an “unconstitutional search.”

Journalists have also reported on cases in New York and Florida where the FBI instructed prosecutors to offer a deal or drop the case entirely to hide details about the technology. In Milwaukee, the FBI simply tried to hide its use entirely from the record.

At least 20 local agencies have signed non-disclosure agreements when they purchased Stingrays, according to privacy advocate Mike Katz-Lacabe, who keeps track. The American Civil Liberties Union and other groups have chronicled federal and local law enforcement use of Stingrays in at least 23 states.

“We still don’t know all of the law enforcement agencies that actually have StingRay/HailStorm/DRTbox devices,” Katz-Lacabe wrote in an email to The Intercept. “With a few exceptions, we don’t know how they are used by each agency or how frequently. We don’t know their full range of impact on nearby phones as we don’t know the technical capabilities of the amplifiers and antennas that are used with the devices. We don’t know which agencies are using equipment that can actually intercept calls instead of just track them. I think that more cases will be thrown out as defense attorneys, judges, and the public learn about the technology that law enforcement has tried to keep secret,” he wrote.

Nathan Wessler, an attorney with the ACLU’s Speech, Privacy, and Technology Project, says the FBI’s openness about Stingrays seems to have gotten a little better since the DOJ updated its Stingray policy in September 2015 to increase privacy protections and legal requirements. “It looks like the DOJ policy has had an effect at least on what the FBI is telling judges when it seeks judicial authorization. The FBI should have exercised at least this level of candor with judges starting years ago, but at least there’s evidence that they’re doing so now,” he wrote in an email to The Intercept.

And yet, he wrote: “The biggest continuing problem involving FBI secrecy about Stingrays is at the state and local level, where the FBI’s nondisclosure agreement has kept judges, defense attorneys, and the public in the dark.”

When it comes to hacking tools, the FBI’s secrecy is “still intense,” Wessler concluded.

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I’ve been checking my Verizon Wireless data usage. VZW customers can log onto their accounts online and check their data usage for the previous 90 days. Download the information for all phone lines per account then open the files up in a excel spreadsheet. The usage details are broken out into KB MB & GB. the Gigabyte usage extends to the 9th decimal place. It is in this column that interesting usage patterns can be seen. Douche bag cops in the Vancouver WA PD have been tracking our phones for some time. We are still trying to learn the details. Unfortunately, VZW customer service and level II tech support are no help. I was asking all of the right questions about tracking my phone and pulling data when my phone was on my home wireless network. The same questions that eventually led me to this article via a Google search. Get your data usage and save it. VZW only posts this data for 90 days. I hope this helps someone facing a bull shit investigation.

Another great story by The Intercept! Love hearing or reading about how the ACLU and privacy rights groups try to uphold laws especially the 4th Amendment which includes protections of US citizens from illegal searches and seizures.

There are three compelling reasons why the FBI would not want to reveal the details of how it produced this evidence.
1) The details would reveal that the method was illegal, or otherwise would result in a judge having to rule the evidence inadmissible.
2) The details would reveal that the evidence came into being through an entrapment operation, or at least open up the grounds to successfully argue that enough to necessitate an acquittal.
3) The details would reveal that the exploit used was deliberately created by the American government/espionage agencies with active or passive participation of American/global technology brands.

“National defense!” “Homeland security!” “War on terror!” “In the public interest!” Just once I’d like to hear them tell the truth, and blurt out, “Because we fucking can, chumps! Who’s gonna stop us!”

That question has been answered, at least for the time being. But, for how long, and how much damage has the FBI managed to do before this timely and massively important ruling? I’m particularly interested in the consequences for any private companies that may have balked at the FBI’s attempts to buy information from them. You can be damn sure the devil’s in the details of those arrangements.

Despite the ruling, the agency won’t change. It’s not what they do. They have no interest in changing, aren’t capable of policing themselves and nobody in government has the balls to hold them accountable.

“evidence that the police and the FBI purposefully withheld and then lied about the capabilities of the technology.”

I can understand (although I do not accept or condone) the desire to keep some of this technology secret. But to actually lie about its existence or use (as has reportedly happened in a number of cases, not just in Baltimore) is a fraud on the court and a criminal offense. Of course the defendant in such cases must be freed and the charges dismissed; that’s well-established law. But so is the crime of lying to the court. Any judge who was so duped should be intensely angry, and if he had any principles he would file criminal charges against the FBI and/or local officials involved. Only when some of these people start going to jail will there be any real impetus for change.

1,000s have complained over the years especially after 911 that a program like that exists today and it worse than COINTELPRO. Read the amazon books by Dr John Hall and Dr Robert Duncan they describe the program of today. The books are free with Amazon Kindle Unlimited. Dr Robert Duncan is an actual whistle blower that states he worked for this program and quit after finding out what really was being done and by whom.

Our devices need to be able to tell us when we are on one of these compromised devices, and start throwing totally encrypted crap at it until the pigs remove their stingray contraption or go away. It can work both ways if we decide to go that route. We can crowd source their technology and use it to inform us of their wherq abouts.

Not how it’d work unfortunately. Instead most of the cruft would be removed via machine learning algorithms and the rest would be used to increase surveillance budgets and the underlying infrastructure that supports it. Terrorism, to them, would ‘rise’ via these methods. It was probably viable back in the 60s/70s though. These days the resource limitations (as in ‘human’) just aren’t really a factor the way they were back then.

Would all of our lives be safer if the government could break down all the doors it wishes, listen to all the conversations it could find and read whatever emails and text messages it could acquire? Perhaps. But who would want to live in such a society?

Wow. Think of the confidence required to go argue in front of a judge that telling him – in chambers! – how you got your evidence is harmful to the public interest. They would literally have to convince the judge to trust them more than he trusts himself!

The police and FBI want the authority to spy on anyone in the general public without having to go to a judge and sign an affidavit to obtain a warrant. Their warrantless activities include hacking into computers and smart phones and installing various malware, such as microphone, video and keystroke monitoring software, and also tracking individual’s locations via Stingray.

Essentially these approaches are ‘general warrants’ of the kind the British colonial government used in their attempts to destroy the American independence movement pre-1776. They were specifically banned by the new American government, but the FBI wants to revive them. Their tactic is to use high-media-profile prosecutions of a few criminals – child pornographers and terrorists – to get the public and courts to accept these methods, (i.e. setting precedents) which can then be expanded to the general public, in particular to journalists, government whistleblowers, political activists, protest organizers, etc.

The only conclusion that makes any sense is that the FBI does not work for the good of the American public, but rather for the good of Wall Street and international financiers and clients of American corporations. This is why there were no prosecutions of Wall Street banksters involved in the 2008 economic collapse; the FBI executives know that if they had, they would never have gotten any lucrative cushy post-retirement Wall Street jobs.

What the FBI and the police don’t want, however, is the general public observing their own activities. Consider the upset shown by police and FBI over traffic apps like Waze that allow users to note the location of police cars:http://www.mobileworldlive.com/apps/news-apps/new-york-police-union-wants-end-wazes-cop-tracking-feature/
Consider also that police and government vehicles often have GPS tracking systems installed; they report their GPS-determined positions back to a central location, probably via mobile phone systems. Why can’t a private individual buy their own Stingray (or make one), use it to spoof police cars into revealing their location, and upload it all to a server? It might make a good business model, charging people to access the police-car-location database. I suspect this would lead to a great deal of FBI and police outrage.

All in all, it points to a dynamic in this country where the general public is viewed by the Wall Street-run plutocratic government much as the British Crown viewed the American colonial population – a potential threat to its power that must be constantly monitored for subversive activities – and what better tool to do that then the “general warrants” used by the British Crown?

In their desire to spy upon everyone, the Govts around the world raise boogie men to frighten us into accepting more and more spying on all of us.
Terrorists: oh my/ we’ve had more killings by children playing with guns than by terrorists here in the US.
Pornography: Research is showing actual sex crimes tend to decrease as Porn becomes more common; some believe it serves as a release for deviant thoughts more than as an incentive. See: http://www.the-scientist.com/?articles.view/articleNo/28803/title/Porn–Good-for-us-/
Power corrupts and massive power like the government has corrupts massively. They are now using power and fear to justify spying on all of us. We have fallen to what Franklin warned us of: and we are choosing safety without thinking of the consequences. Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.

“The FBI would rather let a criminal go free than actually follow a court order designed to ensure a fair defense” even though revealing the bug “would almost certainly not help the defense,” tweeted Nicholas Weaver,

Does Jenna not know that one becomes a criminal after a trial and conviction? I thought the IANAL legal analysis that the unknown “bug” probably wouldn’t help anyway was a nice touch.
Mr. Greenfield should know better as a defense lawyer.

Leaving aside the questionable use of the possessive (which may be Counselor Greenfield’s, faithfully quoted by writer and editor), we are treated, here, to the assumption by a defense attorney not only that a defendant is guilty but that s/he will commit additional crimes in the future.

Add this man’s name to the list of lawyers not to call if you find yourself in trouble.

One becomes a criminal when one commits a crime. One becomes a CONVICTED criminal after trial and conviction. While any particular defendant may be innocent, there are certainly some defendants who are, in fact, guilty; the FBI policy of refusing to proceed with trials certainly results is some guilty people walking.

The FBI is buying exploits from hackers, and then using them to remotely install child porn on people’s computers. Then their agents get a warrant to search the computer and ‘find’ the material. I’m not sure if this is the type of operation which lends itself to transparency.

So people should trust the FBI to only deploy this technique against unpleasant people who deserve it. It’s true they used to target civil rights leaders – but the modern FBI is a professional outfit that won’t allow anyone to attain the status of a revered civil rights leader. Mr. Hoover was a fuzzy idealist who was too timid to use the leverage he had gained through illegal surveillance. Fortunately, the FBI is no longer saddled with excessive hang-ups and hesitancy.

Some people maintain the FBI should be limited by the Constitution. But the founders would have never set those limits if they had been given an opportunity to hack into people’s computers. Tearing people’s doors off their hinges is an obvious violation of their property, but using a secret key to access their computer does no one any harm. It will be interesting to see if the United States can adapt to the modern world or, due to a fundamentalist interpretation of their sacred text, will be condemned to suffer the fate of the dinosaurs.

I can imagine the second conversation FBI council had with the judge with no new legal arguments, except: ”Now that you’ve had some time to consider what we have found on YOUR home computer, and what PRISM has accumulated on you, don’t you think you ought to play ball, and give us what we want on this case for the greater good. Yeah, eh?!”

I too am thrilled about these developments. The world has surely never been safer from the strife associated with the watering of the tree of liberty. If we cannot achieve peace by self-regulation then our best bet, surely, is to rely on the good people at various agencies who supply the FBI with their hard-earned right to perform character adjustments for the benefit of today’s children (tomorrow’s consenting adults). Anything less is an abuse of privilege.

I’m quite excited about these new proposed Rule 41 changes. It’ll give me the opportunity to finally break out of my rut and purchase that portable typewriter with the red ink, maybe make a cubbyhole under the doorway to hide it. I wonder if I’ll ever find an anonymous benefactor to dedicate the book that’ll never be published to, when we never get access to the records collected on us, for our own protection of course. If they exist, will they see the dedication in the Amazon preview?

In their desire to spy upon everyone, the Govts around the world raise boogie men to frighten us into accepting more and more spying on all of us.

Power corrupts and massive power like the government has corrupts massively. They are now using power and fear to justify spying on all of us. We have fallen to what Franklin warned us of: and we are choosing safety without thinking of the consequences. Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.

The FBI tight ropes the law and constitution. WAPO interviewed Mr Holder and he acknowledged the FBI’s use of “Tools” developed for and used by in tel groups. Mr Issa in an interview with Foxnews’s Greta admitted that the FBI doesn’t care about the Constitution and will let a judge decide. The interviewer was about the latest embarrassment with the Iphone security. Then they have made local law enforcement sign noon disclosure of covert “tools” that they are given. Bring bakc J Edgar. They are a disgrace to the badge and oath they take. Pre 9-11 budget of 4bill now over 9bill.

The FBI’s already known for using a taxpayer-funded shady paid informant network to manufacture crimes it then takes credit for stopping, typically preying upon the disaffected or mentally challenged by supplying phony friends, money and/or weapons. An obviously politically motivated Department of Justice has spent years ignoring all known war criminals and world market manipulators, either wealthily retired or still holding power in the U.S. government, destroying any notion of rule of law. How any judge of good conscience accepts the FBI or other agencies with such hacking capabilities might not want to take down those ideologically opposed to what they’re doing, by occasionally planting evidence, is beyond me. Yet without that consideration citizens are stripped of all constitutional protections against what’s quickly becoming Orwell’s vision of Big Brother tyranny.

Your “war criminals and world market manipulators..” is one of the power tools of the US to artificially maintain its Exceptionalism. The silly little NY economists always denigrating China to lie to the american people and feed in to this to support the most destructive TPPetal. Reminds of the big statue with the feet of mingled iron and clay– not too steady, not to withstand much weathering?

“When you talked to people outside the movement about what the FBI was doing, nobody wanted to believe it. There was only one way to convince people that it was true, and that was to get it in their handwriting.” –Keith Forsyth, The Citizens’ Commission to Investigate the FBI

I do not quite follow your comment. I certainly care about protecting abused children. If the abuse does not cross state lines it may not be under the FBI’s jurisdiction. Maybe that is why they did not seem to do much to prevent decades of priest’s abusing altar boys.

My point is it is not their place to decide it is their right to determine that my privacy should be forsaken for what they want to accomplish.

History’s truth tellers may not rate them very highly relating to their efforts over time. As just one example I kind of see John F. Kennedy’s assassination as being far more than a local crime, and so do vast numbers of American’s and foreigners. Anyone that simply looks at the film of him being stuck by the bullets has to see it all does not make sense. The bullets striking him that where supposedly fired from behind would have had to do a complete U turn in midflight. So instead of solving a crime that would have been under the FBI’s jurisdiction J. Edger Hoover who hated the Kennedy’s just used the results of the Warren Commission Report to do nothing. And that is only one black mark out of many. They would have to do a hell of a lot of good to make up for the bad.

Yes, and personal privacy includes the government needing a valid warrant. If preventing the abuse of children always trumps privacy, then there should be no problem with the government setting up cameras in every room of every home in the US and recording 24/7, and requiring all citizens to wear microphones at all times and be implanted with locator chips, etc.

I don’t want the FBI deciding that’s okay, and that the Constitution is not binding. Even if in doing so it helps nab child abusers and molesters.